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Tracking FMLA

How the Department of Labor's new Lawyer Referral Program will increase your risk of FMLA lawsuits—and what you can do about it

The Wage and Hour Division (WHD) of the U.S. Department of Labor reports they received 40,000 FMLA- and FLSA-related complaints in FY 2010 and estimate that about 10% go uninvestigated by the division due to lack of capacity. Consequently, at the end of 2010, WHD announced its new partnership with the American Bar Association (ABA) to actively refer workers with unaddressed claims to local ABA approved litigators specializing in FMLA and FLSA cases. WHD has stated they may decline to investigate a case if it doesn't align with the division's priorities, most of which fall under FLSA governance. This increases the likelihood that FMLA cases will be referred to private litigators in the ABA network. This also means employers face a greater chance of FMLA litigation as workers— whose claims might not have been prioritized by WHD—are encouraged to exercise their "private right to action."

One way to avoid FMLA litigation is through accurate time tracking. Typical time tracking-related complaints include: delayed responses to FMLA requests, failure to designate leave as FMLA, inaccurately tracking FMLA leave balances, or changing worker benefits (such as vacation accrual, work schedule and pay) during employment reinstatement. Careful time tracking is the only way to counter these types of FMLA claims and reduce overall risk of litigation by ensuring an employer can accurately respond, record and report FMLA activity.

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